S T A T E O F N E W Y O R K
________________________________________________________________________
5043
2015-2016 Regular Sessions
I N A S S E M B L Y
February 10, 2015
___________
Introduced by M. of A. PERRY -- read once and referred to the Committee
on Health
AN ACT to amend the public health law, in relation to HIV-related test-
ing without subject person's consent and disclosure of confidential
HIV-related information under certain circumstances
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 6 of section 2781 of the public health law, as
2 amended by chapter 308 of the laws of 2010, is amended to read as
3 follows:
4 6. The provisions of this section shall not apply to the performance
5 of an [HIV related] HIV-RELATED test:
6 (a) by a health care provider or health facility in relation to the
7 procuring, processing, distributing or use of a human body or a human
8 body part, including organs, tissues, eyes, bones, arteries, blood,
9 semen, or other body fluids, for use in medical research or therapy, or
10 for transplantation to individuals provided, however, that where the
11 test results are communicated to the subject, post-test counseling, as
12 described in subdivision five of this section, shall nonetheless be
13 required; or
14 (b) for the purpose of research if the testing is performed in a
15 manner by which the identity of the test subject is not known and may
16 not be retrieved by the researcher; or
17 (c) on a deceased person, when such test is conducted to determine the
18 cause of death or for epidemiological purposes; or
19 (d) conducted pursuant to section twenty-five hundred-f of this chap-
20 ter; or
21 (e) BY A HEALTH CARE PROVIDER AUTHORIZED BY LAW TO ADMINISTER SUCH
22 TEST WHERE THE TEST SUBJECT IS COMATOSE OR OTHERWISE UNABLE TO GIVE
23 CONSENT AS PROVIDED IN THIS SECTION AND THE PERSON SEEKING THE TEST IS
24 AN ENDANGERED WORKER WHO HAS REASONABLE EVIDENCE THAT AN EXCHANGE OF
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03511-01-5
A. 5043 2
1 BODILY FLUIDS HAS INADVERTENTLY OCCURRED WHILE ACTING WITHIN THE SCOPE
2 OF HIS OR HER WORK. FOR THE PURPOSES OF THIS PARAGRAPH, THE DEFINITIONS
3 PROVIDED IN PARAGRAPH (B) OF SUBDIVISION FOUR-A OF SECTION TWENTY-SEVEN
4 HUNDRED EIGHTY-TWO OF THIS ARTICLE SHALL APPLY; OR
5 (F) in situations involving occupational exposures which create a
6 significant risk of contracting or transmitting HIV infection, as
7 defined in regulations of the department and pursuant to protocols
8 adopted by the department,
9 (i) provided that:
10 (A) the person who is the source of the occupational exposure is
11 deceased, comatose or is determined by his or her attending health care
12 professional to lack mental capacity to consent to an HIV related test
13 and is not reasonably expected to recover in time for the exposed person
14 to receive appropriate medical treatment, as determined by the exposed
15 person's attending health care professional who would order or provide
16 such treatment;
17 (B) there is no person available or reasonably likely to become avail-
18 able who has the legal authority to consent to the HIV related test on
19 behalf of the source person in time for the exposed person to receive
20 appropriate medical treatment; and
21 (C) the exposed person will benefit medically by knowing the source
22 person's HIV test results, as determined by the exposed person's health
23 care professional and documented in the exposed person's medical record;
24 (ii) in which case
25 (A) a provider shall order an anonymous HIV test of the source person;
26 and
27 (B) the results of such anonymous test, but not the identity of the
28 source person, shall be disclosed only to the attending health care
29 professional of the exposed person solely for the purpose of assisting
30 the exposed person in making appropriate decisions regarding post-expo-
31 sure medical treatment; and
32 (C) the results of the test shall not be disclosed to the source
33 person or placed in the source person's medical record.
34 S 2. Subdivision 1 of section 2782 of the public health law is amended
35 by adding a new paragraph (r) and such section is amended by adding a
36 new subdivision 4-a to read as follows:
37 (R) A PHYSICIAN OR OTHER PERSON PURSUANT TO SUBDIVISION FOUR-A OF THIS
38 SECTION.
39 4-A. (A) SOLELY IN EITHER INSTANCES ARISING FROM AN HIV-RELATED TEST
40 PERFORMED PURSUANT TO PARAGRAPH (E) OF SUBDIVISION SIX OF SECTION TWEN-
41 TY-SEVEN HUNDRED EIGHTY-ONE OF THIS ARTICLE OR IN INSTANCES IN WHICH
42 CONFIDENTIAL HIV-RELATED INFORMATION PERTAINING TO A PERSON WHO IS
43 SUBJECT TO THE PERFORMANCE OF AN HIV-RELATED TEST PURSUANT TO PARAGRAPH
44 (E) OF SUBDIVISION SIX OF SECTION TWENTY-SEVEN HUNDRED EIGHTY-ONE OF
45 THIS ARTICLE IS CONTAINED WITHIN THE MEDICAL RECORDS OF A HEALTH FACILI-
46 TY, AND NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS SECTION, A
47 PHYSICIAN MAY DISCLOSE CONFIDENTIAL HIV-RELATED INFORMATION TO AN ENDAN-
48 GERED WORKER. IN FURTHERANCE OF SUCH A DISCLOSURE AND NOTWITHSTANDING
49 ANY INCONSISTENT PROVISION OF THIS SECTION, A HEALTH FACILITY MAY
50 DISCLOSE CONFIDENTIAL HIV-RELATED INFORMATION TO A PHYSICIAN DESIGNATED
51 BY AN ENDANGERED WORKER.
52 (B) FOR THE PURPOSES OF THIS SUBDIVISION AND FOR THE PURPOSES OF PARA-
53 GRAPH (E) OF SUBDIVISION SIX OF SECTION TWENTY-SEVEN HUNDRED EIGHTY-ONE
54 OF THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
55 (1) "ENDANGERED WORKER" MEANS A WORKER WHO MAY HAVE BEEN EXPOSED,
56 WITHIN THE COURSE AND SCOPE OF SUCH PERSON'S WORK, TO HIV UNDER CIRCUM-
A. 5043 3
1 STANCES THAT PRESENT A RISK OF TRANSMISSION OF HIV TO SUCH WORKER FROM A
2 PERSON WHO IS SUBJECT TO THE PERFORMANCE OF AN HIV-RELATED TEST, OR ON
3 WHOM SUCH A TEST HAS BEEN PERFORMED, PURSUANT TO PARAGRAPH (E) OF SUBDI-
4 VISION SIX OF SECTION TWENTY-SEVEN HUNDRED EIGHTY-ONE OF THIS ARTICLE.
5 (2) "PHYSICIAN" MEANS A PHYSICIAN WHO IS TREATING OR HAS BEEN
6 CONSULTED BY AN ENDANGERED WORKER.
7 (3) "WORKER" INCLUDES A HEALTH CARE PROVIDER, A NATURAL PERSON
8 EMPLOYED BY A HEALTH FACILITY, OR ANY OTHER NATURAL PERSON WHO MAY HAVE
9 BEEN EXPOSED, WITHIN THE COURSE AND SCOPE OF SUCH PERSON'S WORK, TO HIV
10 UNDER CIRCUMSTANCES THAT PRESENT A RISK OF TRANSMISSION OF HIV TO SUCH
11 PERSON FROM A PERSON WHO IS SUBJECT TO THE PERFORMANCE OF AN HIV-RELATED
12 TEST, OR ON WHOM SUCH A TEST HAS BEEN PERFORMED, PURSUANT TO PARAGRAPH
13 (E) OF SUBDIVISION SIX OF SECTION TWENTY-SEVEN HUNDRED EIGHTY-ONE OF
14 THIS ARTICLE.
15 S 3. This act shall take effect immediately. The commissioner of
16 health is authorized to promulgate any and all rules and regulations and
17 take any other measures necessary to implement this act on an emergency
18 basis.